Cranston Print Works Co. v. Am. Tel. & Tel. Co.

• Decision Date: 23 June 1920
• Docket Number: No. 5361.,5361.
• Citation: 110 A. 419
• Parties: CRANSTON PRINT WORKS CO. v. AMERICAN TELEPHONE & TELEGRAPH CO.
• Court: Rhode Island Supreme Court

110 A. 419

CRANSTON PRINT WORKS CO.

v. AMERICAN TELEPHONE & TELEGRAPH CO.

No. 5361.

Supreme Court of Rhode Island.

June 23, 1920.

On Kehearlng, July 9, 1920.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by the Cranston Print Works Company against the American Telephone & Telegraph Company. Prom a ruling nonsuiting the plaintiff, both parties bring exceptions. Plaintiff's exceptions overruled, and defendant's exceptions sustained.

Herbert Almy, of Providence, for plaintiff.

Claude R. Branch and Edwards & Angell, all of Providence (John C. Knowles, of Providence, of counsel), for defendant.

STEARNS, J. The action is on covenant. The ease is here on bills of exceptions of both plaintiff and defendant.

In 1889, by agreement under seal, plaintiff granted to defendant permission to erect poles and to run telephone wires to be attached thereto over and across an open lot owned by plaintiff adjacent to a public highway in Cranston. Defendant covenanted to indemnify plaintiff from and against all loss, damages, and expenses due to the erection and maintenance of said poles and wires. At the trial plaintiff introduced in evidence the record of the superior court in the case of Marion Carr v. Cranston Print Works Co. to show that a judgment was rendered in said court against plaintiff for the sum of $5,000, which judgment plaintiff was obliged to and did pay.

The Carr case was an action on the case for negligence in which Marion Carr, plaintiff, claimed that in March, 1914, she sustained personal injuries by falling over the stump of a pole, apparently on a sidewalk, but actually a few feet from it, and inside the boundary line of the open lot of land owned by the Cranston Print Works Company. Plaintiff company claims that the pole in question was erected and later cut down by defendant's agents, and in this action asks to be reimbursed for the damages it was compelled to pay in the Carr case by reason of the alleged neglect of defendant in leaving the stump of the pole in an unsafe condition. From the testimony it appears that the defendant company erected and maintained certain telephone poles on the lot in question; also that there were other poles on which wires were strung belonging to other parties. George F. McDonald, a witness called by the plaintiff, testified that he was formerly in the employ of the defendant. In 1896 he was instructed by defendant to remove the wires on certain poles belonging to defendant and such poles as he found had no other attachments, on the line running from Park avenue, Cranston to Pawtucket. This line crossed plaintiff's property. Witness did not know whether he removed any poles from Cranston Print Works' land. Of the poles that were removed some were cut off at the surface of the ground and the stumps were left. Others were dug out of the ground and removed.

Another witness, one Wilbur, testified that he saw a telegraph pole erected on the site of the stump in question on the lot on south side of Cranston street, and that it was subsequently cut down. He was then asked the question, "Do you know who put that telegraph pole there?" to which he answered. "Only by the badges and teams they were using when they set those poles." The witness was then asked what badges and teams were there. On objection counsel for plaintiff said:

"I submit that is the only way it can be proved. The American Telephone & Telegraph Company only acts through its agents, and if he swore they were agents of the telephone company and with the insignia of the telephone company, it is sufficient for people to draw the inference that it was the telephone company."

The witness further testified that he did not know the name of the man who set the pole; that one of the men who was working with this gang told witness that he worked for the long-distance telephone people. Another witness gave testimony of the same general and indefinite character. The witnesses knew nothing about the men who erected or cut down the pole except from the badges and teams used by the men and from conversation with one of the working gang.

Wilbur was not in the employ of the plaintiff when the pole was erected or when it was cut down. (He entered their employ in 18!)9.) So far as appears, there was no business reason for any of the men working on the pole to make statements in regard to their employment to him. The statements, if made, were not made in connection with the business of the employer, but appear to have been part of a casual conversation between an unidentified workman and a bystander.

The trial justice ruled that the evidence offered was not competent evidence to establish the agency. We find no error in this respect. The rule is thus stated in Paulton v. Keith, 23 R. I. at page 165, 49 Atl. 635, 54 L. R. A. 670, 91 Am. St. Rep. 624:

"It is a general rule that the declarations of a person assuming to act as the agent of another are not admissible to prove his agency. He may be called as a witness to state what orders he has received, and upon that point he would be subject to cross-examination, from which a limitation of his authority might appear. But to allow his statement to others upon a vital point as to which he cannot be cross-examined is obviously hearsay testimony and contrary to the well-settled rules of evidence."

For the same reason the wearing of a badge and the inscription thereon, the use of a vehicle with certain signs thereon, are facts not in themselves and without other evidence sufficient to establish agency. At most, they can be regarded as representations of agency by implication and are of even less weight than express declarations in regard to agency. Our attention has been called to no authority to support plaintiff's contention. For a list of authorities contra see 31 Cyc. 1652-1655, 1662.

At the conclusion of defendant's testimony, plaintiff in his rebuttal asked leave to read the deposition of a witness taken by the defendant for, and used by defendant in the trial of the Carr case. Plaintiff claimed the right to read the whole deposition. The trial court offered to permit plaintiff to show any testimony in the deposition which was proper in rebuttal, but refused to permit the entire deposition to be...